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USA Patriot Act of 2001 (2001)

The USA Patriot Act of 2001 was passed just forty-five days after the terrorist attacks in New York and Washington, D.C. on September 11, 2001. The act gives federal officials sweeping and expanded authority to track and intercept communications for law enforcement and intelligence-gathering purposes. It provides law enforcement with investigatory tools for the purpose of deterring and punishing acts of terrorism within the United States and abroad. Met initially with strong support, the USA Patriot Act has since garnered criticism on the grounds that, in the fight against terrorism, it treads heavily on citizens’ civil liberties and First Amendment rights.

Following the September 11, 2001, terrorist attacks the federal government moved swiftly to respond, taking steps to avoiding a repeat of the atrocities and implementing preemptive measures against those suspected of having connections to terrorist groups both inside and outside the United States. The bill that emerged in Congress—Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001— is commonly known as the Patriot Act. The act passed through Congress with widespread support. Senate passage occurred on October 11, 2001, and House passage occurred the next day. The House passed a “clean” bill on October 24, 2001, which both incorporated and resolved differences between the House and Senate measures. The Senate agreed on the changes the following day, with just one dissenting vote and one nonvoting member. President George W. Bush signed the bill into law on October 26, 2001.

The Patriot Act, by amending old legislation and incorporating new provisions, has expanded greatly the authority of federal officials. In addition, executive orders and related legislation have further expanded federal power in the fight against terrorism. The act and its ancillaries aid federal authorities in their efforts to close off U.S. borders to foreign terrorists, detain and remove terrorists already within U.S. borders, and cut off financial resources utilized by terrorists and terrorist organizations.

Law enforcement agencies are empowered with the means to conduct secret searches, surveillance of telephone and Internet communications, and acquisition of individuals’ private records (including medical and student records) without probable cause for the purpose of intelligence-gathering. One example of the federal government’s extensive reach involved its controversial seizure of telephone and cell phone records from telephone companies without being required to show reasonable suspicion or probable cause.

The impact of the Patriot Act has been both immediate and far-reaching. Its passage has resulted in new procedures and penalties to combat domestic and international terrorism. The definitions of crimes, such as terrorist attacks on mass transportation facilities, biological weapons offenses, the harboring of terrorists, and assisting terrorists with material or financial support, have found specific delineation within the law. Although these “new” crimes—and the penalties that attach to them—had been addressed in prior legislature, the Patriot Act comprises a single legislative repository wherein terrorism and terror-related activities are addressed. Typically, the act supplemented existing laws and increased the penalties connected to them. For example, the act provided for the establishment of alternative maximum sentences for acts of terrorism and raised the penalty for conspiracy to perpetrate an act of terrorism against the United States.

The Patriot Act has been cloaked in controversy almost since its inception, with parties on both sides of the debate claiming that the measures within the act lean to one extreme or the other. Critics do not agree: either the provisions are not doing enough or they go too far and infringe upon civil liberties and First Amendment rights. Defenders of the First Amendment contend that the Patriot Act has weakened citizens’ rights by allowing government access to confidential information and authorizing so-called “sneak and peak” search warrants without probable cause.

The act contains a sunset clause that requires Congress to take active steps to reassess the act in light of any changes since its passage. Several of its surveillance sections expired on December 31, 2005, although these were extended through March 10, 2006. Congress reauthorized the Patriot Act with little reform. On March 9, 2006, a day before the extension was due to expire, President Bush signed it into law. The reauthorized act includes a four-year sunset clause on three specific provisions: the attainment of records (such as library records), the use of wiretaps to monitor communications, and the secret surveillance of non-U.S. citizens within the country. Each of these provisions can be lawfully executed without probable cause or suspicion. The sunset clause requires re-examination of these provisions prior to further reauthorization.

Some provisions of the Patriot Act have fuelled First Amendment challenges. An example is section 215, which allows the Federal Bureau of Investigation to “make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information...providing that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” This provision originally included a gag order clause prohibiting anyone receiving a government-initiated request for records from ever disclosing that such a request had been received.

Under current law, a person who receives a request for such records may disclose the request to “an attorney to obtain legal advice or assistance with respect to the production of things in response to the order.” The new law also requires the FBI to include in its record requests “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”

Although the Patriot Act has had a large impact on First Amendment rights and civil liberties since its passage in 2001, the debate surrounding it has also expanded over the past four years. Defenders and critics alike continue to seek a balance between security and preemptive measures for combating terrorism versus protection of individual rights. This is perhaps most evident in the fact that while only one senator voted against the original act in 2001, during Senate debate in mid-December 2005 a bipartisan group of fifty-two senators filibustered the reauthorization. In the end, ten senators opposed the reauthorization of the Patriot Act without substantial reform in early 2006.

“The USA-PATRIOT Act and the American Response to Terror: Can We Protect Civil Liberties after September 11?” Panel Discussion moderated by Jeffrey Toobin. American Criminal Law Review 39 (Fall 2002): 1501.